Hedges v Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools - [2017] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hedges v Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools [2017] NSWWCCPD 34
APPELLANT:	Vicki Hedges
RESPONDENT:	Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-5688/16
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	3 April 2017
DATE OF APPEAL DECISION:	9 August 2017
SUBJECT MATTER OF DECISION:	Section 59A(3); meaning of when “compensation becomes payable”; Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 discussed; adequacy of reasons.
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	NEW Law Pty Ltd
Respondent:	Astridge & Murray
ORDERS MADE ON APPEAL:	1. The name of the respondent is amended to “Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools”. 2. The Arbitrator’s determination of 3 April 2017 is confirmed.

INTRODUCTION

The worker suffered a traumatic injury to her ear. As a result she suffered tinnitus. She claimed compensation for the cost of treatment for her condition. It was not in dispute that pursuant to s 59A(2)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the worker had ceased to be entitled to compensation as more than two years had elapsed since she first claimed compensation.
This appeal concerns the application of s 59A(3) of the 1987 Act and whether the worker’s entitlement to the compensation could be revived due to the need for further treatment and the associated time away from work whilst undergoing treatment.

BACKGROUND

The appellant, Vicki Hedges, was employed by the respondent as a teacher at St Patrick’s College Sutherland. Ms Hedges sustained an acoustic shock injury which caused tinnitus in her left ear on 20 October 2014, when she was using a walkie talkie clipped to her clothing at shoulder height which suddenly emitted two very loud noises.
On 17 November 2015, Ms Hedges made a formal request for a particular form of treatment known as neuromonic treatment as recommended by her treating doctor, Dr Payten.
On 8 December 2015 the respondent through its insurer, Catholic Church Insurances, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers CompensationAct 1998 (the 1998 Act). Catholic Church insurances denied liability for the claimed neuromonics treatment. In particular, it denied injury to the right ear within the meaning of s 4 of the 1987 Act. Further, it disputed that the neuromonics treatment claimed was reasonably necessary as a result of the tinnitus sustained in an injury on 20 October 2014.
On 3 November 2016, Ms Hedges lodged an Application to Resolve a Dispute in the Commission. She claimed $185.25 in respect of past hospital, medical and rehabilitation expenses and a further $6,100 in respect of future treatment, namely, the neuromonics treatment recommended by Dr Payten. The application alleged an injury on 20 October 2014 described as “left acoustic injury – tinnitus”.
On 25 November 2016, the employer filed a Reply to the Application. The matters in dispute were confirmed to be those identified in its s 74 notice.
The matter came before a Commission Arbitrator for a conciliation and arbitration hearing on 3 February 2017 and 20 March 2017. No oral evidence was called. The Arbitrator reserved her decision.
On 3 April 2017, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. She found against Ms Hedges. The Arbitrator was satisfied that the proposed treatment was reasonably necessary and related to the accepted injury. However, as more than two years had elapsed since a claim for compensation was first made in respect of the injury, the worker was excluded, pursuant to s 59A(2)(a)(i), from recovering the compensation claimed. Further, the Arbitrator was not satisfied that s 59A(3) applied because the worker had failed to discharge the onus of establishing that she would be incapacitated and entitled to compensation whilst undertaking treatment.
The Certificate of Determination dated 3 April 2017 is in the following terms:
“The Commission determines:
1. I determine that the applicant is not entitled to recover the cost of neuromonics treatment from the respondent as two years has elapsed since the date on which a claim for the compensation was made.”
The worker has appealed the Arbitrator’s determination.

PRELIMINARY MATTERS

Misdescription of the respondent

Given the unusual description of the respondent to the appeal, I caused enquiries to be made with the respondent as to whether it had correctly identified the legal entity employing Ms Hedges. Following an exchange of correspondence I received an application from the respondent’s solicitors seeking to correct the record to describe the respondent as follows: “Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools”. The respondent has asserted, and I accept, that the correct legal entity has been identified. I am assured that the enterprise agreement applicable to Ms Hedges reflects Dr Dan White as the party to the agreement. The workers compensation policy held by the respondent insurer, Catholic Church Insurances Ltd, also reflects Dr Dan White as the legal employer. The application to correct the record is made by consent and I so order.

Time

There is no dispute that this appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

Monetary threshold

As the quantum in issue on the appeal is in excess of $5,000, albeit by a small margin, the threshold requirement of s 352(3)(a), as to quantum, is satisfied.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred in:
(a) her analysis of the medical and factual evidence in making a finding of fact, in the course of a determination pursuant to s 59A of the 1987 Act, that Ms Hedges would not be relevantly entitled to weekly payments of compensation as a consequence of a compensable incapacity for her pre-injury employment, and
(b) failing to give “proper reasons” for her findings.

LEGISLATION

Section 59A of the 1987 Act provides:
“59A   Limit on payment of compensation
(1)    Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2)    The compensation period in respect of an injured worker is:
(a)if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on:
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b)if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on:
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
(3)    If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
…”

THE ARBITRATOR’S REASONS

The Arbitrator’s findings with respect to injury and the reasonable necessity of the proposed neuromonic treatment are not challenged. The following is a summary of the Arbitrator’s reasons limited to the issues in dispute.
The Arbitrator found (at [18]) that Ms Hedges had no time off work after her initial injury. She noted, however, that Ms Hedges no longer did bus duty as she was hypersensitive to loud noise. The Arbitrator also noted that Ms Hedges had said that in the classroom she could not hear what students were saying unless they were quite close and that she could not cope with background noise.
With respect to the proposed treatment, the Arbitrator noted (at [21]) Ms Hedges’ evidence in the following terms:
“Ms Hailes has indicated that the treatment being proposed will be provided at St Vincent’s Hospital in Darlinghurst. I live in Bangor and would need to take a day off work to drive to Sutherland train station and then catch a train into the city for the treatment which would take a minimum of 2 hours on a monthly basis over some 6‑9 months.
I understand the treatment will be monitored as it progresses, and in the event it is providing benefit it will be continued, but would be discontinued in the event that it is not providing any benefit.”
The Arbitrator further noted (at [22]) that Ms Hedges stated that during the course of the treatment she had been told that she would need to wear a listening device and that she had stated that she could not perform her normal duties as a school teacher while wearing such a listening device.
The Arbitrator noted (at [35]) Dr Payten’s evidence:
“This will involve a visit before she begins the treatment and she will then require 5 more visits at monthly intervals over the 6 months treatment period. She will in addition require one or two follow up visits depending on her response to treatment and possibly 8 and 10 months from start of treatment.
Each of these hour long appointments with the audiologist could be scheduled for mid-morning so she would need to take half a day off work on each occasion.”
The Arbitrator added (at [36]) that Dr Payten said that, with regard to the time off work for the neuromonics treatment itself, Ms Hedges would need to wear a listening device for two hours a day. Dr Payten was of the view that this would prevent Ms Hedges from carrying out duties as a school teacher face to face with a class or doing other playground duties or a bus duty. Dr Payten was of the view that Ms Hedges would be able to undertake music therapy while doing routine office work. He expressed the view that there was no period before or after the active treatment sessions that would incapacitate her for normal employment as a school teacher.
The treatment in question was described by Dr Flanagan in the following terms as recorded by the Arbitrator at [38]:
“The patient will have acoustic stimuli, usually music, delivered via a small device using earphones under the supervision and education from an audiologist. These are designed to retrain the neural pathways and promote the desensitisation of the tinnitus. I would recommend it. …”
The Arbitrator found that in a letter dated 17 March 2017, Mr David Eljiz, Acting Director, Human Resources of Sydney Catholic Schools, noted that the employer was committed to providing suitable duties to an employee recovering from a work related injury or illness. Mr Eljiz confirmed that Sydney Catholic Schools would seek to accommodate Ms Hedges. He said he was reasonably confident that they could provide suitable duties for Ms Hedges in line with the recommendations of Dr Payten in his report of 9 February 2017, subject to the needs of the school and in accordance with its obligations under legislation.
In a case such as this, where the degree of permanent impairment has not been assessed and where no weekly payments of compensation have been paid, compensation is not payable to an injured worker for hospital and medical expenses after two years have elapsed, commencing on the day upon which the claim for compensation in respect of the injury was first made. The parties were in dispute as to the date upon which the claim for compensation was first made. The Arbitrator concluded (at [56]) that a claim for compensation was made on Catholic Church Insurances on or about 23 October 2014 and, therefore, Ms Hedges’ entitlement to receive compensation ceased on 23 October 2016.
The Arbitrator’s reasons for the conclusions reached in the preceding paragraph were set out at [49]–[53] and are reproduced as follows:
“49. A letter dated 30 October 2014 was sent to the applicant by Mr Bruno Dromund of the insurer and was headed: ‘…Claim No WC200000822, date of injury 0/10/2014 [sic]’. Mr Dromund wrote:
‘We refer to your notification of injury received by Catholic Church Insurance on 23/10/2015 [sic, 2014], and would like to advise you that provisional liability has been accepted for medical expenses only.
…
You are entitled to lodge a workers compensation claim, which we recommend if you anticipate that your injury may affect you beyond the allowable provisionally accepted amount for medical expenses indicated above. To lodge a claim please complete the attached WorkCover claim form which you should submit to Catholic Church Insurance together with a WorkCover Certificate of Capacity.’
50.     A form headed ‘Catholic Education Office Sydney’ with the claim number WC200000822 handwritten above and stamped ‘CCI Insurance 23 October 2014 received’ set out details of the incident on 20 October 2014 and noted that the applicant’s ear had been [a]ffected by noise exposure. It appears that a medical certificate was attached to that form.
51.     A facsimile to CEO Sydney dated 22 October 2014 from Anna Slobodzian, College Bursar, St Patrick’s College referred to a workcover form and was headed ‘Re: Workers Comp – Vicky Hedges’. Ms Slobodzian wrote: ‘Attached is work cover certificate and medical receipts which need to be reimbursed to Vicky’.
52.     There was no dispute that the insurer paid for medical expenses, including a direct payment to the applicant for pharmaceutical services in October 2014.
53.     In Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 at [104] providing medical certificates and requesting items of protective clothing was held to be clearly a claim for ‘medical or related treatment’ under s 59(b) and s 60 of the 1987 Act.”
The Arbitrator rejected a submission by Ms Hedges that even if the entitlement period had ceased, she would be entitled to an award for the payment of treatment on the basis that she would become entitled to weekly payments of compensation when she received such treatment (s 59A(3)).
The Arbitrator found (at [60]) that it was not clear that if Ms Hedges underwent the treatment proposed that there would be an entitlement to weekly compensation. She distinguished the facts in this case from those in Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 (Collet) on the basis that where the worker is undergoing surgery, as in Collet, that would require a period of hospitalisation and a period of time off work. Whereas in this matter, Ms Hedges was seeking to undergo neuromonics treatment at an audiology clinic.
The Arbitrator had regard to the manner in which the treatment would be undertaken as described by Dr Payten, and the evidence of Mr Eljiz for the employer who expressed a commitment in writing to accommodate her needs recovering from work related injury or illness.
The Arbitrator held (at [63]):
“It is not sufficiently clear at this stage, in my view, that the applicant would need time off work for the wearing of the hearing device for two hours a day as there is a real likelihood that she would be provided with suitable duties, such as office work, by the respondent.”
The Arbitrator also found (at [67]) that whether or not attendance on a doctor for treatment created an “incapacity” depended on the facts of each case: Gunnedah Shire Council v Brookes [2010] NSWWCCPD 68 (Brookes).
The Arbitrator said (at [67]):
“At this point in time, there is, of course, no medical certificate in respect of any absence in respect of attendance for treatment. In addition, it is not clear whether such an attendances [sic] could be outside working hours. Although Dr Payten suggested that the appointments at the clinic be mid-morning, it is not clear if any alternative arrangement [sic] were available.”
The fact that the worker may have had incapacity when attending the clinic is not determinative of whether weekly compensation was “payable” to her in the relevant period (Collet). Whether compensation is payable will depend upon the application of the legislation to the particular worker’s circumstances.
The Arbitrator rejected (at [69]) a submission by Ms Hedges that s 36 would apply, creating an entitlement to compensation whilst attending for treatment. The Arbitrator concluded that there was no evidence concerning how many hours a week the applicant worked, what her work hours were and the operating hours of the audiology clinic at St Vincent’s Hospital. She concluded:
“Even if the period of treatment extended for the six month period referred to by Dr Payten, and there were six visits made over the six month period to the audiology clinic, I am not persuaded on the evidence at this stage that there would be entitlement to weekly benefits. [Ms Hedges] would need to prove that there was an incapacity while attending the clinic and that weekly compensation was ‘payable’ to her in the relevant period. After reviewing the evidence, I am not satisfied that the onus of proof has been discharged.”
The Arbitrator added (at [70]–[71]):
“70. While she may require one half day a month off to visit the audiologist at St Vincent’s Hospital I am not persuaded that the time off work for the surgery [sic] will result in the applicant having an incapacity and being entitled to weekly compensation.
71. I should add that if the applicant proceeded to have the proposed treatment at her own expense and required time off work for the treatment and then submitted medical certificates and a claim for weekly compensation, I consider that once such compensation was paid the insurer would have an obligation to meet the cost of the treatment subject to it being reasonably necessary.”
The Arbitrator found (at [76]) that despite the conclusions expressed above, the proposed neuromonics treatment was treatment that was reasonably necessary in relation to the accepted injury. That finding has not been challenged.

SUBMISSIONS

Appellant’s submissions

Ms Hedges submits that the Arbitrator erred in declining to make relevant orders consistent with the approach of Roche DP in Collet, with respect to the payment of future medical and treatment expenses. That was because, so it is submitted, Ms Hedges will be clearly and relevantly for the purposes of the legislation incapacitated for work during the course of such treatment.

The Arbitrator determined that the treatment sessions would amount to “half a day”. The basis for that calculation, it is submitted, is unexplained and is an error given the evidence established Ms Hedges would need to travel from Panania to receive treatment over the course of a number hours at St Vincent’s Hospital Clinic in Darlinghurst Sydney. The evidence demonstrated that Ms Hedges lives in a southern suburb of Sydney, a considerable distance from Darlinghurst and would require the use of public transport to and from treatments. Therefore, it is submitted that “the treatment could not be provided other than in business hours and at that clinic”.
The Arbitrator erred by not addressing the fact that Ms Hedges could not perform work duties and would be relevantly incapacitated given her absence from the school’s environs and the fact that she would be the subject of active treatment. Further, it is submitted that there was “no issue that [Ms Hedges] ‘may’ require time from work, the evidence that she would need the time was unchallenged”.
The evidence established that there would be an inability to attend to any remunerative employment with her employer or any other putative employer. It is alleged that the Arbitrator erred in her reliance on the approach taken by me in Brookes on the basis that the facts in Brookes are distinguishable from the facts in the instant matter.
Ms Hedges submits that she had never received weekly compensation and, consequently, any entitlement she might have would fall to be assessed under s 36 of the 1987 Act, not s 37 as Ms Hedges claims the Arbitrator found. This it is submitted is an error or law.
Ms Hedges submits:
“Even if one accepts the arbitrator’s arbitrary assessment of ‘half a day’ as properly reflecting her inability to work during treatment at the St Vincent’s Clinic and if one accepts a working week comprises ten half days then the absence of one half day would necessarily represent 10 per cent of a working week such that compensation would be payable with respect to the difference between 90 per cent and 95 per cent of her [pre-injury average weekly earnings].”
In failing to have regard to that discrepancy in the event that arbitrator’s analysis was correct she erred in law in finding that there was to be no relevant incapacity.” (emphasis in original)
Ms Hedges seeks that the Arbitrator’s determination be revoked and the employer be ordered to pay her treatment expenses with respect to the proposed neuromonic treatment.

The respondent’s submissions

The employer submits that no error of fact or law is capable of being demonstrated in any of the findings made by the Arbitrator, which were open on the evidence. This included the fact that the worker had not supplied any medical certificates in respect of any absence from work to undergo treatment and it had not been established whether such attendances could not or would not be outside working hours.
The Arbitrator’s reliance on the decision in Brookes was not, as Ms Hedges submits, misplaced. The factual circumstances are sufficiently analogous to the present case. In any event it is not apparent from the Arbitrator’s decision that she placed reliance on the decision in Brookes to any greater extent than acknowledging that the facts of each case were determinative.
The Arbitrator’s decision did not rest solely on the question of incapacity. Pursuant to s 59A(4), the worker is required to establish not only incapacity, but all other requirements of Pt 3 Div 2 of the 1987 Act relating to weekly compensation by way of income support. The Arbitrator correctly identified this at [68].
The Arbitrator correctly noted that there was no evidence concerning how many hours per week the worker worked or what her working hours were. Further, there was no evidence as to the opening hours of the clinic at which the treatment would be undertaken and no evidence as to whether the treatment could (or would) be performed outside working hours.
The Arbitrator correctly distinguished the decision in Collet on the basis that in Collet, the worker required surgery which would inevitably lead to incapacity giving rise to an entitlement to weekly compensation.
The submission that the Arbitrator’s conclusion that treatment sessions would amount to half a day was left “unexplained” is not correct. It derives from the report of Dr Payten. The Arbitrator’s statement was open on the evidence and in any event it does not affect her ultimate conclusion.
The employer does not accept that there was “no issue” that Ms Hedges would require time away from work to undertake the treatment and that her evidence was unchallenged. Counsel for the employer squarely argued that the state of the evidence was such that the Arbitrator could not be satisfied that the treatment would be undertaken during work hours thereby requiring time off work (T10).
Further, the Arbitrator was not bound to accept Ms Hedges’ evidence on the issue of when the treatment would be undertaken, nor indeed the evidence of Dr Payten on that issue: Field v Department of Education and Communities [2014] NSWWCCPD 16 at [37].
With reference to Ms Hedges’ “mathematical” calculation based on taking half a day off work when treatment was undertaken, this approach required evidence of the type that the Arbitrator noted (at [69]) was not before her. Further, it required an acceptance that the treatment would be undertaken during work hours which the Arbitrator did not accept.

CONSIDERATION

The Workers Compensation Legislation Amendment Act 2012 (the amending Act) introduced a totally new regime for the assessment and payment of weekly compensation. It introduced in s 59A, significant limits on the recovery of compensation for “treatment, service or assistance” in Div 3 of the 1987 Act. The operation of s 59A is directly related to when weekly payments of compensation are paid or payable and when a worker has “ceased to be entitled to weekly payments of compensation”.
In this case the Arbitrator found that Ms Hedges made a claim for compensation in respect of the injury on Catholic Church Insurances on or about 23 October 2014. Ms Hedges has not challenged the Arbitrator’s finding that, having regard to the operation of s 59A(2)(a)(i), compensation is not currently payable to Ms Hedges under Div 3 in respect of any treatment, service or assistance given or provided after 23 October 2016. Ms Hedges can only recover the compensation claimed if s 59A(3) applies and her entitlement to compensation is revived. That is, if weekly payments of compensation become payable after 23 October 2016 within the meaning of s 59A when Ms Hedges has an entitlement to actually receive such compensation by reason of a compensable work injury. Before it can be determined weekly compensation is “payable”, the terms of the legislation must be applied.
As Roche DP observed in Collet at [62]:
“As observed by Gibbs J in J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 at 650 (Nelson), when dealing with the weekly compensation provisions in the Workers Compensation Act 1926, a worker who establishes that he or she received an injury arising out of or in the course of their employment, and that as a result sustained some incapacity for work, is ‘in general entitled’ to receive workers compensation from the employer. However, such a worker who has made out those facts ‘may not be entitled at any particular time to payment of compensation, since his right may be dormant’ (emphasis added) (Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; 81 CLR 585 at 596).”
Section 59A is concerned with an actual entitlement to receive weekly compensation. So much is confirmed by the inclusion of subs (3) in 59A which refers to the worker “becom[ing] entitled to receive weekly payments of compensation after” having ceased to be entitled to compensation under Div 3.
In Collet, Roche DP added at [74]–[75]:
“As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation’. There is no scope for a contrary argument. As a result, his entitlement to compensation under Div 3 will revive ‘but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]’ (s 59A(3)). That is, while he is having, and recovering from, the surgery.
As that is in the future, and as it is not known how long that period will be, it is not possible to make any finding or order in advance …”
This is precisely the point the Arbitrator made at [68] of the reasons. Consistent with Collet, the Arbitrator found that whether Ms Hedges may have an “incapacity” when attending the clinic for treatment is not determinative of whether or when weekly compensation was “payable” to her.
The Arbitrator also found correctly, and consistent with Collet, that should Ms Hedges proceed to have the proposed treatment at her own expense and require time off work for the treatment, if medical certificates were submitted at that time in support of a claim for weekly compensation, compensation would once again become payable to her and the insurer would be obliged to meet the cost of the treatment as it has been found to be reasonably necessary. It follows that I reject the submission that the Arbitrator’s determination is inconsistent with Collet.
I do not accept the appellant’s submissions with respect to the alleged factual errors. I reject the submission that the Arbitrator erred in finding that the proposed treatment would involve half a day and was unexplained. The finding is consistent with Ms Hedges’ evidence (at [21] above) and Dr Payten’s evidence (at [23] above).
I reject the submission that the Arbitrator erred by failing to address the fact that Ms Hedges could not perform work duties and would be relevantly incapacitated while away from the school environs while undertaking treatment. The submission was addressed and rejected by the Arbitrator (at [69]). The submission was rejected because of an absence of evidence concerning the number of hours per week worked by Ms Hedges in a given week or any evidence concerning her regular hours of work. Nor was there any evidence concerning the operating hours of the audiology clinic at St Vincent’s hospital. Further, no medical certificates were in evidence of any incapacity. Given the state of the evidence, the Arbitrator was not satisfied that Ms Hedges discharged the onus of proving incapacity and that weekly compensation was payable to her. Considering the whole of the evidence, the Arbitrator’s finding of fact was clearly open. No error has been demonstrated.
I reject the submission the Arbitrator erred in her reliance on the decision in Brookes. The Arbitrator’s reliance on that decision was, as stated (at [67]), limited to an acknowledgment that whether or not attendance on a doctor or treatment provider creates “incapacity” depends on the facts of each case. That is clearly correct. For the reasons stated above, the Arbitrator gave close attention to the facts presented on the question of incapacity and whether compensation was payable to Ms Hedges and concluded that the onus of proof on those issues had not been discharged.
The submission that there was “no issue” that Ms Hedges may require time from work and that the need for time off work was unchallenged is not correct and I reject it. The employer’s counsel Mr Saul directly argued that the state of the evidence was such that the Arbitrator could not be satisfied that the treatment would be undertaken during work hours, thereby requiring time off work. So much is demonstrated by the following submission (at T10.9, 20.3.17);
“So this doctor is saying each of these hour-long appointments with the audiologist could be scheduled - could be, not would be or has to be - for mid-morning so she would need to take half a day off work on each occasion. Well, with great respect, that’s a nonsense. We don’t know that, as I say, because the treatment could occur before work hours, it could occur after work hours, it could occur on a Saturday morning and we don't know if it’s going to be necessarily half a day, that’s for the person who’s going to do the treatment to determine. Might be an hour and if it’s an hour there may be no entitlement to weekly compensation, in any event.
But broadly speaking, that doesn’t prove an incapacity, an incapacity has to result in actual economic loss and as I say, if the treatment can be done before and after work or even an hour during work or on weekends there’s certainly no economic loss that will result and economic loss, and I’ll come to this in a moment, is critical. You’ll note that in section 59A I can't find the word incapacity. It talks about compensation payable”.
Ms Hedges’ submission that the Arbitrator erred at law by applying s 37 of the 1987 Act, when s 36 of the 1987 Act is the relevant provision, is rejected. Her submissions fail to provide any reasoned argument to support the alleged error. The Arbitrator made no mention of the possible application of s 37. The Arbitrator identified (at [69]) that in the event that Ms Hedges established an entitlement to compensation, the applicable provision was s 36 of the 1987 Act. Having set out the formula to be applied, the Arbitrator concluded that, because of an absence of evidence, as discussed above, no entitlement to compensation under s 36 had been established.
Ms Hedges’ submission that the application of the formula in s 36 would entitle her to an award of compensation is dependent on evidence of the kind discussed at [66] above, which the Arbitrator concluded, correctly, was not before her. It also required acceptance that the proposed treatment would be undertaken during work hours, which the Arbitrator did not accept. For these reasons the submission is rejected.

Adequacy of reasons

The appellant’s second ground of appeal concerns the adequacy of the Arbitrator’s reasons for decision. No submissions were made in support of that ground of appeal.
Section 294(2) of the 1998 Act provides:
“A brief statement is to be attached to the certificate [of determination] setting out the Commission’s reasons for the determination.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a)the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission's understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In NSW Police Force v Newby [2009] NSWWCCPD 75 I considered the nature of an Arbitrator’s duty to give reasons at [149]–[151]. At [149] I said:
“To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247).”
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker: Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6. When considering the adequacy of reasons a decision must be read as a whole: Beale v Government Insurance Office(NSW) (1997) 48 NSWLR 430 at [443]–[444].
I am satisfied that the Arbitrator has discharged the statutory obligation to provide reasons. The path of reasoning which led the Arbitrator to her ultimate conclusion has been clearly stated. Namely, the absence of evidence concerning the number of hours per week worked by Ms Hedges in a given week or any evidence concerning her regular hours of work. This coupled with an absence of evidence concerning the operating hours of the audiology clinic at St Vincent’s hospital, and the absence of any medical certificates of incapacity, led the Arbitrator to conclude that Ms Hedges had failed to discharge the onus of proving incapacity and an entitlement to weekly compensation whilst undergoing treatment. It followed that in those circumstances s 59A(3) did not operate to revive Ms Hedges’ entitlement to the compensation claimed.

DECISION

The name of the respondent is amended to:
“Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools”.
The Arbitrator’s determination of 3 April 2017 is confirmed.

Judge Keating
President

9 August 2017